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Constitutional Law I
University of Connecticut School of Law
Cohen, Mathilde

                                      i.      ART IV §2 “Privileges & Immunities of Citizens in the Several States”
Miranda, amendment w/ extra-textual protection (SCOTUS interpreted Due Process 5th and 6th)
                                       ii.      Authors were white christen land owning men (others excluded)
                                        iii.      19th amendment not until 1920 including women- 13th abolished slavery (Art 1.2.3 3/5 clause; Art 4.2.3 fugitive slavery clause; Native Americans sovereign non-citizens- 1924 all granted citizenship)
                                        iv.      Art I §2 c5, No alien President
b.      Bobbit’s Modalities of Constitutional Argument:
                                            i.      6 categories
1.      Historical
2.      Textual (Scalia is a historical/ textualist)
3.      Structural inferences created by structure created by document (McCullouch v Maryland interpretation goes against structure of State authority if State can tax fed)
4.      Doctrinal based on precedent
5.      Ethical
6.      Prudential
7.      *** Prof adds DYNAMIC modality/ living constitutionalism
a.       Marbury v. Madison- Pres Adams during last days in office appointed several Justices of the Peace- signed commissions and Secretary of State Marshall sealed them, but not all delivered by end of Presidents term, new President Thomas Jeferson chose to not honor those positions undelivered
b.      Is Marbury entitled to his position? Is new Secretary of State Madison bound to deliver? Is SCOTUS proper place to review & are they able to remedy this case?
c.       Sources of law: Constitution & Sec 13 of the Judiciary Act of 1789
d.      Conclusions: Yes Marbury is entitled, once President has signed a senate-approved appointment and SS stamps, appointment is constitutionally finalized, actually delivery is not necessarily (would take power away from the Executive Branch & transfer it to any menial delivery person). Act of 1801 gave JP positions for a term of 5 yrs, new President cant undue appointment.  Sec 13 of Judiciary Act of 1789 gives power to issue writs of mandamus to persons holding office. Yes, SCOTUS is the proper place to hear this case. NO, SCOTUS cannot offer remedy via writ of mandamus, because Congress is NOT authorized to expand scope of SCOTUS’s original jurisdiction beyond what Art III .2 but can modify SCOTUS appellate jurisdiction
e.       Significance:  finding legal cause to nullify law created by Congress in direct conflict w/ Constitution established Judicial Review
                                                              i.      Subsequent legal decisions impact: McCulloch v. Maryland & Gibbons v. Ogden
f.       Justice Marshall authored opinion & McCulloch
                                                              i.      Rich history of tension
John Adams
Alexander Hamilton
George Washington
Strong gov
economic dev/banking
tend to side w/ Britain
Thomas Jefferson
James Madison
State power
Limited Federal Government
tended to side w/ France
g.      Federalists maintained control until the election of 1801
h.      Jefferson- Burr tie
                                                              i.      Broken by lame duck congress
                                                            ii.      VP = runner up
                                                          iii.      Lame Duck Congress took forever to decide
                                                          iv.      Jefferson President
i.        Federalist Response
                                                              i.      Launch massive attack on Federal Judiciary- attempting to dominate
                                                            ii.      President Adams nominates his Secretary of State Marshall to Chief Justice SCOTUS (for a month Marshall held both positions)
                                                          iii.      Pass judiciary Act of 1801
1.      Creates new circuit Judges & JPs
2.      Eliminates circuit writing (Justices hated circuit writing)
3.      Decreases # of Justices from 6 to 5 beginning when next retires (leaving new Pres unable to

ative & Executive decisions
a.       This case furthered power of Judicial review & establish the concept of Implied Powers; US Government has rights not only to clearly defined powers in Constitution but also to “IMPLIED POWERS” therein
b.      Maryland passed State legislation taxing US Bank, cashier refused to pay tax- Baltimore court rule in favor of State of Maryland- Appeals confirmed- SCOTUS overturned
c.       Does Congress have Constitutional right to create bank? Does Maryland tax interfere w/ Congressional powers by taxing?
d.      Sources of law Art I sec 8; Congressional Act to Incorporate a Bank; Maryland Act imposing tax
e.       Yes, Congress can incorporate a bank- power not expressly written in Constitution, it is an IMPLIED POWER through Art. I sec 8, Congress has the power “ to make all laws which shall be necessary & proper (elastic clause) for carrying into execution the foregoing powers, and all powers vested by this Constitution” including the power to tax, spend, and regulate currency; National Bank is appropriate means to execute these powers, therefore Congress has the IMPLIED POWER.
Yes, MD law unconstitutionally interferes w/ these implied powers
f.       Significance: case further power of Judicial Review and established the concept of Implied Powers
g.      REVIEW: McCulloch = necessary & proper; Art I sec 8, “Elastic Clause” grants Congress power to pass all laws Necessary & Proper for carrying out enumerated powers
                                                              i.      Art VI Para 2 “SUPREMACY CLAUSE” Constitution shall be the Supreme Law of the Land”
                                                            ii.      & STRICT CONSTRUCTION = 10th Amendment State’s rights